Beware. If a council says something
isn't an obstruction, you can still ask if it's licensed.
If not, it shouldn't be there.
Says John Rowlands, Anglesey.
I was very interested to read one of your newsletters online about unlawful cattle grids.
I'm not generally a horsey person, but I do have a grid on my land that was installed by my neighbour (as part of a private RoW deed) back in 1997. He didn't ensure, though, that my property's then owner obtained a licence for its installation. Perhaps uniquely, my land abuts agricultural land, but is itself no agricultural. That means that s.147 cannot apply and no obstruction like a stile or gate can be erected because it only applies to agricultural land.
In 2004, the council claim they inspected the path. They either didn't realise the grid was unlicensed, or otherwise did nothing about it. A side gate was installed, but it lay off the definitive route and this was very obvious to anyone using the path.
In 2008, when I took the property over, I asked the council to ensure is was lawful. They tried to get me to sign a licence application that I had to confirm my land was agricultural. Becuase it isn't, I wouldn't sign it. They failed to issue any alternative wording. They even said that the side gate was acceptable, and that the deviation of the footpath off the definitive route was "a matter for you and neighbour", which is nonsense.
A wire mesh was eventually installed over the grid, which removed the issue of it being an obstruction (whilst making it less stockproof, but we haven't yet had a problem with this and the deed allows action to be taken if it does fail.) But it left the matter of the grid being unlicensed unaddressed. The council know they are wrong, but are foucsing only on the matter of it no longer being an obstruction in an attempt to escape the hole they've dug themselves. A complaint is now with the Ombudsman. In the end, I've no doubt the grid will have to be removed and a gate placed on my neighbour's side of the boundary, because it is agricultural.
The problem with a grid being unlicensed is that, if someone does injure themselves, I'd be up a creek. The council would be off into the sunset, probably claiming I should have insisted they act at the time.
So, in relation to your neck of the woods, if a council says something isn't an obstruction, you can still ask if it's licensed. If not, it shouldn't be there. Sadly for councils, retrospective licensing, such as they tried to use here, is the subject of considerable debate as to its lawfulness. As far as I can see, it isn't.
Says Bob Milton
Not an unusual council approach - ostrich springs to mind, watch your back.
John really needs legal opinion as to liability.
He does not say what kind of highway runs over the land and cattle grid.
The BHS and BBT [Byways and Bridleways Trust] are involved in a court case regarding off line gates and illegal diversions.
Someone like Sue Rumfit or Robin Carr, both IPROW consultants, may be the best first step.